The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for an accident occurring on March 1, 2012 was not acceptable. A hearing was held on October 31, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 12, 2012 the worker filed a claim with the WCB for a low back injury that occurred at work on March 1, 2012 when she lifted a pail of liquid detergent. The worker provided the name of one co-worker who helped her lift the pail of detergent and the name of another co-worker who saw the incident. The worker noted that she had asked a maintenance worker to help her put the pail between the two machines but he refused as he was a newer worker. The worker reported that it was a half hour before her shift was ending and she was starting her holidays. She thought the pain in her back would ease up and would eventually go away.

The worker stated that she did not report the accident right away to the WCB because her manager told her that she was not going to get WCB benefits. The worker said she was paid sick days until July 14, 2012 based on a letter from her employer. After July 15, 2012, she obtained wages from her employer but was not sure from where (maybe vacation pay). The worker said she had not retired nor had she given notice to retire but was sent a Record of Retirement by her employer. The worker stated that she did not quit her job.

The Employer's Accident Report dated September 14, 2012 stated that the description of accident was "unknown" and they were concerned that this may be a "pre-existing claim." The employer noted that the worker retired on July 31, 2012.

The WCB contacted the employer, the worker and the two co-workers whom the worker said were witnesses to the March 1, 2012 incident. The WCB also obtained medical information from the family physician, a neurologist and the treating physiotherapist.

In a decision dated October 25, 2012, the worker was advised that her claim for compensation was not accepted as the WCB was unable to establish a date of accident as there were delays in reporting an accident to her employer and to the WCB. In support of her decision, the adjudicator stated:

You relate your low back difficulties to lifting a pail at work. Your Worker Injury Report indicates the injury occurred on March 1, 2012. The report stated that your coworkers A and T both witnessed the accident however in review of the schedules, A was not working on March 1, 2012.

In our discussion of September 27, 2012 you confirmed the date of accident was March 1, 2012 however you also indicated that it was the last day you worked prior to beginning your vacation. The employer indicated that your last shift prior to your vacation was in fact March 3, 2012.

During my investigation I was unable to confirm the date of accident. You worked in your regular duties March 1, 2 and 3, 2012 and did not mention experiencing difficulties while at work. When you left work on March 3, 2012 you left to take vacation and did not report a workplace injury. You did not report your accident to the employer until September 14, 2012. Although your coworkers were aware of your back difficulties no one could confirm when these difficulties began.

Your physiotherapist confirms that you attended treatment on March 1, 2012 and mentioned a workplace accident but could not confirm the date it occurred.

On November 30, 2012, a WCB short terms claims supervisor reviewed the worker's claim based on a request from the Worker Advisor Office. Following his review of the file information, the supervisor stated that he had not come across any evidence that would warrant a change to the previous WCB decision based on the following factors:

• The date of accident was not confirmed.
• The work schedule was unclear.
• The coworker who lifted the pail with the worker was unaware of an injury.
• The two coworkers and the worker were fully aware of reporting procedures.
• The worker's supervisor was not aware of a workplace injury being reported in March 2012.
• Neither the physiotherapist nor the treating physician reported a workplace accident to the WCB at the time of the first visit and they both were fully aware of WCB reporting practices.
• The worker stated that she did not work following the date of accident, however a coworker who witnessed the worker saying "ow" said she was aware of ongoing complaints on the next shift.
• The worker confirmed that she experienced leg symptoms similar to the symptoms experienced both before and after her event in March 2012.
• The diagnosis presented appeared to be severe stenosis with pre-existing condition of degenerative changes confirmed both before and after March. There was no evidence of an aggravation noted.
• While being aware of WCB, the worker elected not to submit a claim until after exhausting other entitlements.
• There were many inconsistencies in confirming a workplace accident at this time.

The short terms claims supervisor noted that a WCB adjudicator would be clarifying some additional details and that a further decision would be forthcoming.

On January 7, 2013, the worker was advised that further information had been obtained and reviewed and that no change would be made to the decision to disallow her claim. The adjudicator indicated that there were many inconsistencies in the file information and that she was unable to establish that an accident occurred on March 1, 2012.

On January 16, 2013, a worker advisor submitted to Review Office that the worker's claim for compensation was acceptable as the evidence on file from the worker's treatment providers and statements provided by her co-workers supported the validity of the worker's claim.

The worker advisor indicated that the worker did not report her accident to the employer immediately because of an upcoming previously-scheduled vacation from work during which time she felt her symptoms would resolve. He noted that the statements from the worker's co-workers confirmed knowledge of the worker's reported accident at work in March 2012. He noted that the work schedule confirmed that all three co-workers (one of which was the maintenance worker) were all present at work on March 1, 2012 when the accident occurred. While there were apparent inconsistencies in the details of their reports, this was likely due to the fact that the incident in question occurred several months earlier. The worker advisor also referred to reports from the treating physician and the physiotherapist to support that the worker did suffer an injury to her back at work on March 1, 2012.

In a decision dated May 16, 2013, Review Office determined that the worker's claim was not acceptable. Review Office indicated that the worker did not report to the WCB until six and a half months after the accident and only did so when her other benefits were running out. The worker never reported the injury as work-related to her employer.

Review Office noted that the worker was treated by her physiotherapist several times into May 2012 and that the physiotherapist never reported the injury to the WCB. The treating physician also treated the worker for six months and arranged consultation with specialists and further testing and completed returned to work forms for the employer without reporting to the WCB.

Review Office stated that it was unable to establish an accident "arising out of and in the course of employment" as there was no continuity between the accident descriptions or the accident date. Review Office felt that the evidence was varying and unreliable at best. On August 14, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The worker’s position:

The worker was assisted by a worker advisor at the hearing and the services of an interpreter were provided. Two friends of the worker were also present at the hearing. The worker's position was that the evidence supported that she sustained a low back injury which arose out of and in the course of her employment. On March 1, 2012 the worker hurt her back when she attempted to lift a 50 pound pail of laundry detergent. While the task was generally done by the maintenance staff, on this particular occasion, the worker was left to do it on her own. Despite contradictions in their recollections, two co-workers confirmed details of both the incident and the resultant injury. Due to her expectation that her pain would resolve while off on her pre-arranged 3 week vacation, the worker delayed in reporting her injury. Her symptoms, however, did not improve while off work, so she reported the accident to her employer. The worker states that she was dissuaded from filing a claim with WCB so she used her sick time before applying for Employment Insurance ("EI") benefits. It was EI who encouraged the worker to apply for benefits through WCB.

Overall, it was submitted that the evidence supported that the worker sustained an injury as a result of a workplace accident on March 1, 2012. While the WCB expressed concern with lack of reporting by the worker, her physician, and treating physiotherapist, it was submitted that the worker provided a reasonable explanation for her actions and cannot be faulted for the inaction of others. The worker's claim should therefore be accepted.

The employer’s position:

Two representatives from the employer appeared at the hearing. The employer's position was that the worker's symptoms did not result from a workplace injury. The worker had a history of similar symptoms prior to March 1, 2012. It was also noted that the worker worked for one day on March 3, 2012 and that no mention of her injury was made to anyone. The employer had an education policy with respect to proper lifting technique and this was reviewed by the WCB. The employer had sent notes for the worker to have her physician fill out but the employer never received any response. It was submitted that the evidence did not support the finding that the worker suffered an injury at work.

Analysis:

The issue before the panel is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury during the course of her employment on March 1, 2012. We are able to make that finding.

The worker's claim is for a low back injury which causes the worker pain in her lower back and hips and which radiates down her right leg. At the time of the accident, the worker was 76 years old and had been attending a physiotherapist for treatment. Her last appointment before the accident date was February 23, 2012 (6 days earlier). Diagnostic imaging reports indicated the presence of extensive degenerative changes in the worker's lumbar spine including degenerative disc disease, facet arthropathy, osteoarthritis and severe spinal stenosis.

Although the worker undoubtedly had a pre-existing back condition at the time of the accident, she had nevertheless been able to sustain her employment as a laundry aide. Following the date of the accident, there was a distinct change in her level of function and she was no longer able to regularly carry out her duties.

After reviewing the evidence as a whole, the panel is satisfied on a balance of probabilities that an accident did occur on March 1, 2012 as a result of which the worker suffered a low back injury and corresponding loss of earning capacity. In particular, the panel relies on the following evidence:

• Although the worker had been receiving physiotherapy treatment as recently as February 23, 2012, the physiotherapist confirmed that on March 1, 2012, the worker attended and commented on the workplace accident. The physiotherapist stated that there had been a change in the worker's presentation, symptoms and diagnosis between the two appointments and that the worker related the change to her workplace injury.
• Two co-workers were able to confirm the mechanism of injury whereby the worker lifted a large pail of laundry detergent. This task was not part of the worker's regular job duties and the panel accepts that this action could cause injury to the low back.
• The employer's records confirm that the worker, the two co-workers, and a third maintenance worker who was supposed to assist the worker with lifting the pail were all present at work on March 1, 2012.
• The diagnosis of lower back pain and right sciatica reported in the Doctor First Report from examination date March 19, 2012 is consistent with the symptoms recorded by the physiotherapist on the date of the accident.

The panel acknowledges that some of the reported details surrounding the accident and the worker's ability to work on March 3, 2012 are conflicting, but overall, we find that there is sufficient evidence to satisfy us on a balance of probabilities that an incident occurred at work on March 1, 2012 and that as a result of that incident, the worker sustained a personal injury which impaired her earning capacity. We therefore find that the worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of December, 2013